Sierra Club v. Hodel

Decision Date30 November 1987
Docket NumberCiv. No. 87-C-0120 A.
Citation675 F. Supp. 594
PartiesSIERRA CLUB, a non-profit corporation; National Parks and Conservation Association, a non-profit organization; Southern Utah Wilderness Alliance, a Utah non-profit corporation, and The Wilderness Society, a District of Columbia non-profit corporation, Plaintiffs, v. Donald P. HODEL, in his capacity as Secretary of the United States Department of the Interior; The Department of the Interior of the United States; The Bureau of Land Management; Garfield County, a political subdivision of the State of Utah; and Harper Excavating, Inc., a Utah corporation, Defendants.
CourtU.S. District Court — District of Utah

COPYRIGHT MATERIAL OMITTED

Wayne G. Petty, Moyle & Draper, Salt Lake City, Utah, Lori Potter, Sierra Club Legal Defense Fund, Denver, Colo., for plaintiffs.

Joseph W. Anderson, Asst. U.S. Atty. for Utah, Salt Lake City, Utah, Patrick Nolan, Panguitch, Utah, Ronald W. Thompson, Thompson, Hughes & Reber, St. George, Utah, for defendants.

MEMORANDUM OPINION AND ORDER

(IN LIEU OF FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER F.R.C.P. 52a)

ALDON J. ANDERSON, Senior District Judge.

I. INTRODUCTION

The controversy in this case focuses on a county's plans to upgrade a dirt road in southern Utah, known as the Burr Trail. The Burr Trail is a sixty-six mile road running southeasterly from the town of Boulder in central Garfield County to the Bullfrog Basin Marina on Lake Powell, just across Garfield County's southern border. This litigation concerns only the twenty-eight mile section of the road from Boulder to Capitol Reef National Park, since Garfield County's current construction plans cover only that section.1 Defendant Garfield County plans to facilitate travel on the trail by widening it to a two-lane road, eliminating many sharp curves, adding additional drainage to prevent flooding, improving the road base, crowning the road surface to shed rainwater, and applying a gravel surface.2 Plaintiffs, several environmental organizations, have brought this action to permanently enjoin the proposed construction, fearing that the changes in the road's alignment, as well as the increased traffic which could result from an improved road, will impair the naturalness and the solitude that the area now offers. Federal defendants are parties to this action because plaintiffs allege that they have failed to fulfill their responsibilities under the National Environmental Protection Act (NEPA) and the Federal Land Policy Management Act (FLPMA) to manage and preserve the federal lands through which the Burr Trail passes. On March 10, 1987, this court granted plaintiffs' motion for a preliminary injunction pending a trial on the merits. On June 8 and 9, 1987, the court traveled the full length of the Burr Trail from Boulder to Bullfrog and observed the regional conditions and activity. Frequent stops were made along the road with opportunity for discussion on the record between the court, counsel, BLM District Manager Morgan Jensen, the project engineer Steve Creamer, and others. Trial commenced in late August and lasted twenty-five days.

A. Description of the Burr Trail3

Garfield County enjoys few improved roads. Federal lands comprise over 90% of the county, and state lands make up an additional 6%. The Burr Trail is the only road directly connecting the Bullfrog-Ticaboo region in eastern Garfield County with the Boulder-Escalante region in the central part of the county. As a result, it is the only road directly connecting Bullfrog/Ticaboo to Panguitch, the county seat, about ninety miles away in western Garfield County. The only reasonable alternative for one traveling from Bullfrog to Boulder is to head north on Route 276 through Ticaboo about 72 miles to Hanksville, west on Route 24 about 51 miles to Torrey, and south on route 12 about 32 miles to Boulder, extending the travel time by at least an hour.

Traffic on the Burr Trail is steadily increasing. Lake Powell was formed by the construction of the Glen Canyon Dam in the 1950s and it continues to grow in popularity, attracting hikers, boaters and vacationers from all over the nation.4 Activity at Lake Powell, combined with Ticaboo's advent as a center for uranium mining, have augmented the Burr Trail's importance as a thoroughfare. The road in its current condition, however, is inadequate to accommodate much vehicular traffic. The county hopes that an improved road will provide safer travel for its residents as well as improve the region's economy by attracting more visitors.

For easy identification in the construction plans, 1,463 locations, referred to as stations, have been marked off at regular intervals along the twenty-eight mile stretch of road on which construction is proposed. References in this opinion to points along the trail will be to these numbered "stations." From Boulder to the top of Long Canyon,5 the left edge of the Burr Trail forms the southern boundary of the Steep Creek Wilderness Study area and the right edge of the road forms the northern boundary of the North Escalante Canyon Instant Study Area.6 The first ten miles of the road pass over gently rolling terrain with sparse vegetation.7 The road is relatively straight, but follows the natural undulations in the land, giving it a roller-coaster effect. The road lacks an adequate sub-base; rain and traffic cause deep ruts, impeding safe travel at speeds greater than twenty miles per hour.8 Numerous drainage culverts have been installed throughout this section of the road, but the evidence shows that they are insufficient to carry off the rain at times of heavy storms. The plans call for about a dozen additional culverts to be installed in this section. (Exhibits D-38 and D-38A)

Accordingly, the proposed construction in this section consists of cutting and filling in order to widen the traveled surface to a uniform 24 feet, building an adequate road base, crowning the road surface to shed rain, installation of adequate drainage ditches, culverts and catch basins to prevent flooding, and application of a gravel surface.9 The cuts and fills will disturb only soil and roadside vegetation. For the most part the fill material will be taken from the cut material.

About seven miles out of Boulder, the road crosses the Deer Creek. The terrain then becomes more mountainous as the road approaches The Gulch. The hills get steeper and the road must wind through large rock formations. The road is necessarily narrower and forms some hazardous curves; in some spots, two cars cannot safely pass each other. As a result, the construction in this area requires more cutting and filling, both to widen the road and improve the grade as it descends into The Gulch. Through this area the side hill cuts will be into rock as well as soil.10

The Gulch, also known as The Wash, is a ravine through the bottom of which passes a stream channel. As the road descends into The Gulch, it forms a narrow hairpin curve as it turns northeastward through the riparian area in preparation for the seven-mile stretch up through Long Canyon. At times of heavy rains, water pours into The Gulch and the stream overflows and washes out the road, rendering it impassable and requiring reconstruction by county maintenance crews.11

The road straightens somewhat as it heads up Long Canyon.12 The canyon is bounded on both sides by 200-foot high, vertical, red sandstone cliffs. In some places, the canyon is only 300 feet wide; in others it opens up to a quarter of a mile or more. Passage up the canyon is obstructed by large amounts of soil and rock debris deposited against the walls on both sides, making the canyon effectively even more narrow.13

The stream channel which flows into the riparian area in The Gulch runs to the left of the road as one heads up the canyon.14 This channel served as the road before the county built the present road on the right side of the canyon. The present road is much straighter and safer than the old channel road, but is still subject to flooding and washouts. Protecting the road from flooding is a major concern throughout the canyon. The plans call for removing some of the soil and rock debris to permit moving the channel farther to the left and reinforcing the side of the channel against the road with riprap protection. This will permit widening of the road with a minimum of rock blasting into the sides of the canyon. It will also help eliminate two blind curves.

Coming out of Long Canyon, the road makes a difficult curve along the side of a steep hill.15 Here, much fill is required to provide support for two lanes, straighten the road, and build a better sub-base. As the traveler approaches the area known as The Blues, named for the coloration of the surrounding hills, an increasing amount of blue clay is encountered on the road.16 This clay becomes very slippery when wet and renders the road more dangerous and sometimes impassable. The proposed work through this area will help provide an allweather road by improving the sub-base and applying a gravel surface. The road then passes through about a mile of rocky terrain in the Circle Cliffs region, after which it levels off somewhat for the remainder of the proposed construction—approximately ten miles. Through the mile of rough terrain, the project calls for cuts, fills and some tree removal.17 Through the remainder of the proposed construction, however, which comprises over a third of the project, the road is relatively straight and level and comparatively little work is needed.18 The work will consist only of small amounts of fill used to widen and improve the roadbase; the road will be crowned to shed the rain and a gravel surface will be applied. About thirty drainage culverts will be installed in this section. (Exhibits D-38 and D-38A) As with the first ten miles of the project, only soil and desert vegetation will be disturbed. Indeed, through the final six miles of the project, in the...

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  • So. Utah Wilderness v. Bureau of Land Management, No. 04-4071.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 12, 2005
    ..."`reasonable and necessary for the type of use to which the road has been put.'" Hodel, 848 F.2d at 1083 (quoting Sierra Club v. Hodel, 675 F.Supp. 594, 606 (D.Utah 1987) (citing Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 649 (1929))). Relying on Nielson v. Sandberg,......
  • Stupak-Thrall v. U.S.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 23, 1996
    ...cited two cases, both of which involved the Federal Land Policy and Management Act of 1976 ("FLPMA"). One of them, Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987), aff'd in part, rev'd in part, 848 F.2d 1068 (10th Cir.1988), never mentions the word "takings," let alone construes "valid ......
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    • United States
    • U.S. Court of Appeals — Tenth Circuit
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    ..."`reasonable and necessary for the type of use to which the road has been put.'" Hodel, 848 F.2d at 1083 (quoting Sierra Club v. Hodel, 675 F.Supp. 594, 606 (D. Utah 1987) (citing Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646, 649 (Utah 1929))). Relying on Nielson v. Sandberg, 141 P.......
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    ...lawsuit. Other segments of the Boulder-to-Bullfrog Road have previously been the subject of litigation, particularly Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987), affirmed in part, reversed in part and remanded, 848 F.2d 1068 (10th Cir.1988). That earlier experience provides helpful ......
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